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Legality of forced evacuations during NSW Bushfires

This question comes from an academic colleague, Dr Christine Eriksen, Research Fellow at the Australian Centre for Cultural Environmental Research and the Centre for Environmental Risk Management of Bushfires at the University of
Wollongong; you can see details of her research at http://socialsciences.uow.edu.au/ausccer/people/UOW073400.html.

Dr Eriksen wrote:

I am writing to seek your advice on the legalities of bushfire evacuations. In the aftermath of the recent State Mine Fire in the Blue Mountains, my team at UOW revisited interview participants who were initially interviewed mid-2013 on their preparedness for bushfire. The State Mine Fire provided a unique opportunity to investigate if their preparations withstood the attack. During one interview, a participant vented his frustration with police orders to evacuate his property, as he was well-prepared to face the fire. He candidly asked me if legally he had to follow such an order when the ‘Prepare. Act. Survive.’ policy guides people on how to prepare their property in order to stay and defend it. I promised to get back to him with an answer, as I needed to get my facts straight first.

I have always been under the impression that Australia does not have a ‘mandatory evacuation’ policy in place. Is this correct? Does the situation changed when a State of Emergency is declared? Referring to section 37 (as well as 37A-38) of the State Emergency and Rescue Management Act 1989, the Act can ‘…authorise an emergency services officer to direct a person to do any or all of the following: a) to leave any particular premises and to move out of an emergency area or any part of an emergency area…’. The key seems to be the word ‘direct’: does ‘direct’ equal mandatory? Is it ‘advice’ or an ‘order’

The policy adopted by the fire authorities has been against forced evacuation. In 2003 the Australian Federal Police sought a declaration of a State of Emergency under the (then) Emergencies Act 1999 (ACT).

Commander Newton believed that a declared state of emergency might prove necessary in order to empower police to forcibly evacuate people from situations in which the police believed the person’s life was at risk. (Maria Doogan, ‘The Canberra Fire Storm: Inquests and Inquiry in Four Deaths and Four Fires between 8 and 18 January 2003’, ACT Coroners Court, p 343).

The Executive Director of the Emergency Services Bureau, Mike Castle,

… said that he resisted Commander Newton’s request for his support in declaring a state of emergency because forced evacuations were at odds with best practice as developed by the Australian Fire Authorities Council’ (Doogan, p 344).

Ultimately a declaration was made but I have not seen evidence that there were any compulsory evacuations.

The issue of the AFAC policy and evacuations was considered by the 2009 Victorian Bushfires Royal Commission. The Commission (Final Report, Vol II, ¶1.2) said:

Fundamental to the stay or go policy was the idea that people should decide for themselves in advance of a bushfire whether they will stay to actively defend a well-prepared home or leave early to avoid any confrontation with the fire. People were advised to make the choice in the light of individual circumstances, without being directed by fire agencies, and to detail their intentions in a ‘fire plan’ to be activated on days of high bushfire risk. The policy did not tell people they risked death and serious injury if they stayed to defend.

As a result of criticism of the policy, the Royal Commission made recommended that:

The State introduce a comprehensive approach to evacuation, so that this option is planned, considered and implemented when it is likely to offer a higher level of protection than other contingency options.

The Royal Commission took the view that the paramount consideration in bushfire policy must be the perseveration of human life (Final Report, Vol I, xxvii-xxviii). The Royal Commission’s recommendations, and approach, have been adopted across Australia. Today the ‘Bushfires and Community Safety Policy’ (Version 5.0, November 2012) adopted by the Australian fire agencies through their peak body, the Australian Fire and Emergency Services Authorities Council (AFAC) still focuses on personal decision making but does recognise that fire agencies need to:

Act on the understanding that people within the community who, for a range of reasons, are not able to prepare or respond appropriately, may need assistance to relocate before a bushfire threatens their district or property. (¶4.3.13)

Incident Controllers need to ‘make decisions about whether to recommend an evacuation to the general public or relevant authority’ (¶4.3.14). The policy still refers to ‘recommend’ rather than ‘require’.

The current policy was reflected in the response to the West Australian Perth Hills Bushfire. The Special Inquiry into those fires, led by former Australian Federal Police Commissioner Mick Keelty, was concerned with the application of the post 2009 policy and raised the very issues raised by your respondent. In the Perth Hills fires people were evacuated and no lives were lost, but many homes were. The final report said:

The Special Inquiry does not dispute the priority given to protecting life, however, it is concerned that the process of widespread evacuation may be at odds with the focus on educating people about risks and empowering individuals and communities to exercise choice and take responsibility, as set out in the National Strategy for Disaster Resilience. The Strategy has an explicit focus on building disaster resilient communities, noting that in these communities:

People understand the risks that may affect them and others in the community. They understand the risks assessed around Australia, particularly those in their local area. They have comprehensive local information about hazards and risks, including who is exposed and who is most vulnerable. They take action to prepare for disasters and are adaptive and flexible to respond appropriately during emergencies.

The National Strategy for Disaster Resilience further defines a disaster resilient community as one where people have taken steps to anticipate disasters and to protect themselves.

The Special Inquiry spoke with residents who questioned the rationale for preparing their own bushfire plan setting out what they will do during a fire event if it is likely they will be evacuated anyway. The Special Inquiry was concerned that the widespread use of evacuation as a strategy to protect life has the potential to disempower communities, rather than building resilience. Residents could choose not to engage in community level preparations, not consider what action they would take during a bushfire, or not take adequate steps to protect their properties, if they believe the default response to an emergency is to evacuate. (Mick Keelty, ‘A Shared Responsibility: The Report of the Perth Hills Bushfire February 2011 Review’ p 42).

The conclusion is that there is not a policy of mandatory evacuation. The AFAC policy is still that people need to make their own decision and prepare for bushfires but they need to be informed that the safest place to be, during a bushfire, is somewhere else and that in some circumstances homes cannot be saved and lives will be lost. The fire agencies need to make arrangements for people who cannot evacuate or for whom their ‘plan A’ (whether to evacuate or stay and defend) fails.

Although there is no clear policy in favour of mandatory evacuations, the police and emergency services do have the power to require to people to evacuate. Pursuant to the State Emergency and Rescue Management Act 1989 (NSW) s 60L:

A senior police officer may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death threatened by an actual or imminent emergency, direct, or authorise another police officer to direct, a person to do any or all of the following:
(a) to leave any particular premises and to move outside the danger area,
(b) to take any children or adults present in any particular premises who are in the person’s care and to move them outside the danger area,
(c) not to enter the danger area.

Police may use reasonable force to ensure compliance with their direction (s 60L(2)). The exercise of this power does not require a state of emergency to have been declared. More problematically, because this power is a power vested in the police, they may exercise it when they think it is necessary, there is no need for them to discuss their decision or seek approval from the relevant incident controller.

Where a State of Emergency is declared, various emergency service officers may be given a similar power (s 37) including the power to use reasonable force to ensure compliance (s 37(2)). During the 2013 Blue Mountains fires a State of Emergency was declared. The Minister’s powers were delegated to the Commissioner of the Rural Fire Service who authorised some emergency service officers to direct evacuations (see ‘Order declaring state of emergency in respect of bush fires’, 20 October 2013 and Shane Fitzsimmons’, ‘State of Emergency; Authorisation of Powers’). (Similar powers may also be given to emergency service officers by the Commissioner of the State Emergency Service when managing a response to a flood, storm or other emergency for which the SES is the ‘combat agency’ (see State Emergency Service Act 1989 (NSW) s 22)).

There is no specific criminal offence for failing to comply with the order, but there is a general offence to obstruct the Minister or a person acting under the authority of the Minister during a declared State of Emergency (State Emergency and Rescue Management Act 1989 (NSW) s 40; see also State Emergency Service Act 1989 (NSW) s 24). The maximum penalty is a fine of $5500 and/or 2 years gaol. It is unlikely that this could be applied to someone who simply refused to leave his or her own home.

It follows that police, and during a State of Emergency authorised emergency services officers, can require people to evacuate – that is a compulsory order but the extent of the compulsion is that the officer may use reasonable force to ensure compliance; for example a police officer may chose to use force to evacuate a person from a flat when then entire block needs to be evacuated due to a fire in another apartment or to forcibly remove children from a home despite objection from their parents, The use of the power in a bushfire such as the State Mine fire is, however, virtually unimaginable. The risk to officers and the diversion of resources that can be used to warn others means that the chances of police or emergency services deploying resources to forcibly evacuate one person, during an extreme bushfire, must be virtually nil.

Making a compulsory order would, however, provide protection for individual officers who, for whatever reason, believe that taking action is justified and possible and would also be relevant for public institutions, for example nursing homes would be expected to comply or face serious legal implications if they do not evacuate when ordered to do so and residents are killed or injured and workplaces would be expected to release their workers if police direct the workplace to be evacuated. The issue of an evacuation order may also be relevant and give moral strength to the emergency services who may then refuse to re-enter the danger zone to rescue someone who has chosen not to evacuate (as was seen during Cyclone Yasi when Premier Anna Bligh announced that people in the impact area could not expect assistance after they had been ordered to evacuate).

In summary, there is not a policy of mandatory evacuation but the police and emergency services do have the power to order an evacuation if required. Where an order is made under ss 37 or 60L it is a ‘mandatory’ order but during fires such as the State Mine fire, it will, for all practical purposes, be unenforceable.

As Geoff says, below, the ‘pecuniary interest’ exemption is unique to Victoria. The Emergency Management Act 1996 (Vic) s 24 provides various powers to the Minister to be exercised during a state of disaster but subsection 7 says “The power of the Minister under subsection (2)(e) may not be exercised so as to compel the evacuation of a person from any land or building if the person has a pecuniary interest in the land or building or in any goods or valuables on the land or in the building.” As with New South Wales, the police may declare an ’emergency area’ and may close roads to teh area and prohibit people from entering the area, including people with a pecuniary interest in the properties within the ’emergency area’ but there is no power to require people who are in that area to leave (Emergency Management Act 1996 (Vic) s 36B).

A member of the Metropolitan Fire Brigades may direct a person to ‘withdraw from any premises then burning or which are threatened by fire’ but not if they have ‘any pecuniary interest therein or in any goods or valuables whatsoever thereon’ (Metropolitan Fire Brigades Act 1958 (Vic) s 58; see also Country Fire Authority Act 1958 (Vic) s 31(4)).

This subject reflects the perennial problem of those empowered to enforce the law being unqualified to make a judgement as to whether evacuations should or should not be enforced. Why do I say this?

It is apparent to me that the enforcement of emergency powers is and should not be the job of firefighters, but rather the police. But the judgement as to whether a particular property or residence is defensible and therefore safe for the owners or occupants to remain is quite another matter. Such a judgement is properly based on many factors – the intensity of the fire, the immediate surroundings of the property and, of course, the nature of the building itself.

Firefighters, particularly those with long experience and who are senior enough, are about the only category sufficiently qualified to make such judgements. I suggest that that is the reason there is no policy of mandatory evacuation and, further, that there is little likelihood of such in the future (or so I fervently hope!).

As i understand matters and based on recent experience at two large fires there exists an understanding (I am not sure if there is a formal MOU) that in NSW police will act to evacuate only on the advice of firefighters. Thus, if the police ask whether evacuations should be enforced firefighters will in many circumstances say not at all or only certain properties and this is respected.

My great fear is that the tragedy of Black Saturday will continue to influence policymakers to the extent that exists in the US where massive property loss is regularly suffered simply because of mass evacuations (spurred on by the media).

After all that, my feeling on the man in the Blue Mountains is that he could have resisted successfully the push to evacuate him. That has happened where I live (2003) and … in the late ’90’s I urged all the neighbours to resist all instructions to evacuate…

And finally, a question for you: If a person is, say, arrested or at least forcibly removed from his premises by police and the premises later is lost to the fire, does he have any legal recourse for damages? Presumably he would base his action upon an argument that the fact that there was nobody in attendance caused the premises to burn down.

Thanks for the comment, I think however the thing to bear in mind is the infinite number of circumstances that the emergency servcies face. So you say “It is apparent to me that the enforcement of emergency powers is and should not be the job of firefighters, but rather the police” and that’s fair enough during a large campaign fire where a coordinated IMT is working and liaising with police and some decision is made to evacuate an area in the face of an oncoming fire. But we also want to make sure that a single fire fighter who enters a burning building can physically pick up someone, say a mentally confused individual who does not want to be evacuated, and carry them out without fear of being liable for assault. Like much law, in particularly statute law (see the comment by Martin danger, above) there would be no real risk in my scenario because of various common law defences, but it helps to make it clear for everyone and for firefigthers in particular, to put that in the statute. In that case the statute has to be broad enough to deal with all situations.

It may be true that “Firefighters, particularly those with long experience and who are senior enough, are about the only category sufficiently qualified to make such judgements” but I’m not persuaded that “that is the reason there is no policy of mandatory evacuation”. I think there is no policy because the science still says that people can save their own homes, because of philosophical belief in ‘liberty’ and that governments should not interfere with fundamental private rights to protect a person from themselves, and because such a policy is largely ineffective – ie it can’t actually be enforced. But having said that as my post shows there are legal powers to allow ‘compulsory’ evacuation and while they can be largely ignored by individuals, institutions (schools, clubs, health facilities, hotels etc) would be expected to comply or face pretty drastic legal consequences (civil and potentially criminal) if they chose to ignore those directions.

I’m sure that there is an understanding between RFS and police that where the RFS has taken charge of fire fighting operations, that decsisions to evacuate are made in consultation with the Incident Controller, but the law does not require this. It could require that as for example some laws don’t allow the police to act unless they have consulted with the combat agency, or vice versa (see Emergencies Act 2004 (ACT) s 68(7)). The NSW Act does not require that but again it has to be remembered it is a general provision that is intended to be used in all manner of emergencies, not just bushfires.

“My great fear is that the tragedy of Black Saturday will continue to influence policymakers to the extent that exists in the US where massive property loss is regularly suffered simply because of mass evacuations (spurred on by the media).” There’s no doubt the doctrine of the Royal Commission to place life as the absolute priority will continue to affect policy makers, but as Keelty pointed out the mere fact that no-one died cannot be, or should not be, the single measure of success and he recognised that forcing people to evacuate did increase the risk of property losses and defeated the notion of resilient communities. He called for further discussion on the ‘measures of success’ (see Eburn and Dovers, Australian Journal of Emergency Management, forthcoming) to address the issues you are also addressing here.

Finally you ask “If a person is, say, arrested or at least forcibly removed from his premises by police and the premises later is lost to the fire, does he have any legal recourse for damages?” The answer to that is ‘no’. Where the parliament gives a power to an authority it is intended that it will be used – provided the police officer holds the necessary belief and is acting ‘in good faith’ (ie not for some improper purpose) then he or she is entitled to make that order. The section makes it clear that the purpose of their decision is for ‘protecting persons from injury or death’; it would conflict with that clear statutory objective to require the officer to consider the risk to property – it is saying that life is more important. The suggestion that if allowed to stay the person would not have died but could and would have defended their property would be mere speculation, and could hardly establish, on the balance of probabilities, that the action of the officer ‘caused’ the property to be lost; the cause of the loss would be the fire. One could invent different factual situations, where the order was clearly unnecessary, eg ordering an evacuation on a low fire danger day due to a slow running grass fire that was then allowed to consume a house, but putting aside such extreme situations, the reality is that no one could not have legal recourse for damages for an decision made in good faith to exercise powers of compulsory evacuation (see also State Emergency and Rescue Management Act 1989 (NSW) s 62).

My understanding in Victoria is that there is still no power to compel people to evacuate if the individuals have a pecuniary interest in the property. This distinction does not apply in other Australian states.

I am going to ask you a question as an extension of your current discussion. It is often quoted within emergency management planning documents within NSW that various [agencies] can order an evacuation. Generally, ‘order’ tends to mean a direction to evacuate in a mandatory sense.

I suspect the SES Act and the SERM Act are the only ones which clearly allow a direction to leave and the use of force to back it up if required (however unlikely the execution of that power might be). However, in NSW plans it is often quoted that fire services have the authority to direct an evacuation through the section related to the removal of persons or things which interfere with the operation as this is the Section in the planning documents for this authority. One suspects that the authority to order an evacuation is actually vested in other sections. Perhaps under the protection of life generalities. In the Fire Brigades Act there might be a clearer authority to also use force (any means) but that is an uniformed guess…

Who does have the authority to order rather than just request an evacuation?

As we have seen, the police can order an evacuation (State Emergency and Rescue Management Act 1989 (NSW) s 60L) as can authorized emergency services officers during a declared state of emergency (State Emergency and Rescue Management Act 1989 (NSW) s 37).

Emergency services officers authorized by the Commissioner of the State Emergency Service may direct an evacuation during the response to an emergency where the SES is the lead agency; that is flood, storm or tsunami, or an emergency where the State Emergency Operations Controller has directed the Commissioner to take control of the response (State Emergency Service Act 1989 (NSW) ss 19 and 22).

An officer in charge of the response by the Rural Fire Service ‘may cause to be removed any person’ who, by their presence will ‘interfere with the work of any rural fire brigade or the exercise of any of the officer’s functions’ (Rural Fires Act 1997 (NSW) s 22A). That is not as broad as the powers (above) and could hardly be used to justify pre-emptive evacuation or even the compulsory evacuation of a person threatened by fire, if they sit passively and do nothing it can hardly be said they are interfering with the work of the Brigade. And if the RFS want to tell someone to evacuate as the fire is of overwhelming ferocity and they, the RFS are evacuating, the decision of that person to stay would also not be ‘interfereing ‘ with the RFS operations so again s 22A would not seem to have application. Section 22A is not a power to require evacuation to protect the person at risk, but to make it easier for the RFS to perform their tasks.
The RFS can close streets (s 24) but that is a power to stop people entering a danger area, not a power to require those already there to leave.

An officer may ‘take any other action that is reasonably necessary or incidental to the effective exercise of such a function’ imposed on the RFS by the Act. One of the functions of the RFS is to provide rural fire services which includes services to protect people from danger from fires (s 9). Arguably that could mean forcibly dragging a person from the path of an oncoming fire and I suspect, if it came to court, a court would be willing to find some justification either under common law or the Act to justify such action, or, say, a fire fighting taking children from a home where the parents wanted to stay and defend and the fire fighter thought, honestly, that they were doomed and he or she was not prepared to let the children die with them. I think however that’s the sort of provision that courts can use when they want to and that depends on the circumstances; but in principle, the RFS do not have the power to order evacuations and certainly not ‘pre-emptive’ evacuations ie not in the face of the fire.

The officer in charge of a response by Fire and Rescue NSW ‘may cause to be removed any person’ who ‘…might, in the officer’s opinion, interfere with the work of any fire brigade or the exercise of any of the officer’s functions’ (Fire Brigades Act 1989 (NSW) s 19). That officer may also ‘take such measures as the officer thinks proper for the protection and saving of life and property and for the control and extinguishing of the fire’ or hazardous materials incident (s 13). The analysis of these sections would mirror the analysis of the provisions in the Rural Fires Act, above.

The absence of a specific power for the RFS and FRNSW is not really a problem. There is nothing to stop the officer in charge, if he or she is of the view that people are in danger, to ask the police to arrange their evacuation and if the senior police officer can, in appropriate circumstances, exercise his or her powers under s 60L. This would accord with the principles that Michael Lonergan argued for, above, namely that it would the fire agencies making a determination of the risk, but the police being left with the responsibility for the actual evacuation. It would also be consistent with principles of command and control, AIIMS and a coordinated agency response as it allows the IC to make a decision – ‘those people are in danger’, and then delegates to another agency (the police) to take some action which they can do under s 60L, and not tie up fire fighters as quasi law enforcement officers. Such action is also consistent with the obligation upon police to assist and support the fire agencies (see Fire Brigades Act 1989 (NSW) s 25).

So if emergency plans do call for consideration of evacuation, the fact that the specific power is not vested in the fire authorities, should not be a barrier for effective action.

It looks like I’ve started something here, I am the person that asked the original question of Christine Eriksen. This is being referred to as “The Blue Mountains”, whereas geographically I suppose this is correct but we in Bilpin like to think of ourselves as being in “The Hawkesbury” whereas the “Blue Mountains” is “The Other Side”!
I am an ex RFS volunteer with AF, VF and Rural Fire Driver qualifications as well as being a Deputy when I resigned several years ago because I objected to the Sydney RFS office at Homebush trying to run the fires from down there. I also didn’t want to be on “standby” somewhere while my own place was on fire so I decided it would be better to protect my own property for a change. During the October fire situation here in Bilpin we had wall to wall police presence, they were mostly Highway Patrol and some I met were from Gladesville which is a suburb of Sydney. So as the law stands a police officer from Gladesville with no fire experience whatsoever except for his Sunday afternoon barbeque has the authority in a bush area to make the decision that my life is in danger and I must be evacuated. If that is the law then it has to be changed. The police or some of them that were up here in October were rude and arrogant and told residents to mind their own business when they were asked what they were doing on their properties. Some were seen with video cameras filming around residents’ houses and refused to explain “why”. I also could not get an answer to my question of “why is the riot squad hiding behind the Bilpin Hall with all their heavy equipment?” As an RFS driver I have had experience with police and most of them are terrified or at least stressed out because they are in a foreign situation which they do not understand. I understand that they are necessary sometimes but they should not be thrown in to fire situations where they are really quite out of their depth.
Regards,
John Keeble. Bilpin NSW

To be correct we need to say “So as the law stands a SENIOR police officer from Gladesville…” A senior police officer is an officer of or above the rank of sergeant (State Emergency and Rescue Management Act 1989 (NSW) ss 60KA and 60L.

As for police entering on to premises to film (or do anything else) the ancient common law is against that. There is a common law right to enter premises to knock on the door but that can be withdrawn by the occupier either via a locked gate, or telling someone, including the police, that they do not have permission to enter or remain in the property (Halliday v Neville (1984) 155 CLR 1). In Plenty v Dillon (1991) 171 CLR 635 the High Court had to consider whether police had a right to enter premises to serve a summons when any implied licence had been clearly withdrawn (that is “Mr Plenty had expressly revoked any implied consent given to any police constable to enter upon his farm in order to serve the summons or any other document relating to the matter concerning his child”.) Mason CJ Brennan and Toohey JJ said:

The starting point is the judgment of Lord Camden L.C.J. in Entick v. Carrington (1765) 19 St Tr 1029, at p 1066:

“By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.”

“‘The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail -its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.’ So be it – unless he has justification by law.”

“The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.”

Police may have all sorts of powers to enter the property AFTER it’s been destroyed by fire, but not in anticipation in case some video will assist the coroner. Equally there may be an implied right of entry to execute their authority under s 60L but that wouldn’t give authority to enter if not exercising that power. If police are on one’s property you have every right to require them to leave, but of course that’s a bit hollow, if they don’t leave that may be a tort (trespass) so a ‘remedy’ (damages) may be a long time coming and cost a lot to get; trying a self help remedy (ie force) will see you arrested and charged and again, even if exonerated that will take a lot of time and money and police may, in particular circumstances, have a lawful authority you aren’t aware of so being right is not something I’d bet my liberty on!

Thanks for your interest, as usual your text is full of historic information, maybe my problem is being from the UK and I still believe my home is my castle. However the police here do what they like and tell us to mind our own business, to quote one highway patrol officer that I met driving out of my property which is at the end of a bush track while I was driving in, I asked him what he was up to and he replied, “none of your business, it is a public road, we are the police and we can go where we like”. My wife then tried to speak to him and he told her to “shut your mouth”. He told her that twice more when she tried to speak and I drove off in the end. That attitude was typical for most of the cops in the area at that time. When I queried it with a seargent that I know his explanation was that “they were probably stressed out”. Anyway I doubt if you want to be hearing all this rubbish anyway, when the next fire emergency arises in this area I will be closing a very large gate across the track to keep them out. Regarding your correction to “senior police officer” I wouldn’t know if he was senior or otherwise, he was just driving a highway patrol car, I regard myself as “senior” I have a “seniors card” ! regards, John Keeble my location is shown here on my little website http://people.aapt.net.au/~bilpin07/~bilpin07/index.htm

John, thanks for the further information. Let me say I don’t want to get into the details too much as of course I and the other readers of this blog are only getting one view of the events so I don’t want to get involved in a discussion about the particular conduct of particular officers.

Sticking to the legal issues, in my last response to your comments I gave a quote from Plenty v Dillon (1991) 171 CLR 635. That’s a 1991 High Court decision, the judges there quoted English decisions from 1765, 1964 and 1984. These can also be traced to Seymane’s case of 1690. So these cases are historical but they were cited, partly because I like the prose, but mostly because they represent the current law. It may be of little consolation however that in Plenty v Dillon the High Court held that the officers had committed a trespass but that took from the date of service (31 October 1978) to the date of the High Court decision (7 March 1991), some 13 years! In Kuru v NSW [2008] HCA 26 police entered a house to determine if there was a domestic violence incident occurring. On being invited in and determining that there was no offence being committed and no one in need of assistance, the police refused to leave. Ultimately a struggle took place and the defendant was charged. The High Court decision affirmed that the police did not have lawful authority to remain in the premises but they remitted the matter back to lower courts to finalise the case based on other issues. So that took 7 years and still didn’t resolve the issue.

Hence my earlier comment that “If police are on one’s property you have every right to require them to leave, but of course that’s a bit hollow, if they don’t leave that may be a tort (trespass) so a ‘remedy’ (damages) may be a long time coming and cost a lot to get; trying a self help remedy (ie force) will see you arrested and charged and again, even if exonerated that will take a lot of time and money and police may, in particular circumstances, have a lawful authority you aren’t aware of so being right is not something I’d bet my liberty on!”

In this latest comment you said you asked the police what they were up to. If it is correct that they were on a public street (which need not be a street ‘owned’ by the public, just one open to the public) then they correct that they don’t have to explain themselves to you any more than you have to explain yourself to a police officer. You are not obliged to answer police questions (but again standing up for the legal theory my not, practically, be very wise).

As for ‘senior police officer’ that is an officer of or above the rank of sergeant, but that is the rank of the officer that must make the decision to evacuate under s 60L, but having made the decision he or she can use others to communicate and enforce their order. As s 60L says “A senior police officer may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death threatened by an actual or imminent emergency, direct, or authorise another police officer to direct, a person to do any or all of the following: (a) to leave any particular premises and to move outside the danger area…”

“Also glad you clarified a Fireman physically removing a person during a fire/HAZMAT without some fear of copping an assault charge. Often wondered about that in light of the lack of clarity within legislation. However, I did note you exampled a ‘mentally confused’ person.

I actually once (during an exercise) questioned a fire officer’s authority to hold down a person a decontaminate them against their will and, similarly, referred them to the Police Sergeant next to them who did have such authority (but – to be fair – who would obviously not use it without due consideration to the hazardous situation presented).

So with that, and I am cognisant of your time, you mentioned Common Law on a few occasions with regard to saving of life, etc. If it is not a long explanation, are there a few words or references pointing to an explanation of that part?

And, the last is a question on whether Section 60L and 61 can be exercised independently of (and possibly contrarily to) directions 37 and 37A (especially in light that the Minister delegated their directive authority to another person – although not sure that would make a difference anyway)”.

My example of a mentally confused person was simply to limit the discussion to the uncontroversial case. As for a “fire officer’s authority to hold down a person a decontaminate them against their will” it’s correct that the fire brigades have no specific authority in that regard. Section 60L(1A) of the State Emergency and Rescue Management Act 1989 (NSW) says

(1A) A senior police officer may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from chemical, biological or radiological contamination , direct or authorise another police officer to direct, a person who may have been subjected to such contamination to do any or all of the following:
(a) to remain in a particular area,
(b) to remain quarantined from other persons,
(c) to submit to decontamination procedures.

Section 13(1) of the Fire Brigades Act 1989 (NSW) says

(1A) At the site of a hazardous material incident, the officer in charge: (a) may take such measures as the officer thinks proper for the protection and saving of life and property, for confining and ending the incident and for rendering the site safe…

That section is a general section and would not normally be expected to allow forcible decontamination of a person for their own good. One could also argue that it does not extend to forcible treatment even if it is intended to protect the environment because if such a power was intended, a specific grant of power, such as that set out for police in s 60L(1A) would be given but I’m sure a court could be persuaded that this section does extend to forced decontamination if that is required to stop a person leaving a hazardous materials site and spreading the contamination and thereby threatening others.

The common law is the law developed on a case by case basis by the judges of the superior courts (Courts of Appeal and the High Court of Australia). The most important common law principle here is the principle of ‘necessity’ which justifies all sorts of things if on balance, breaching the law is necessary to lead to a good outcome. So necessity (not ‘implied consent’) justifies the treatment of the unconscious even though they have not consented. In that sense ‘necessity’ can justify what would otherwise be an assault but not if the treatment is contrary to the known wishes of the patient (In Re F [1990] 2 AC 1]. In that (English) case Lord Goff said:

That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt… These cases are concerned with action taken as a matter of necessity to assist another person without his consent. To give a simple example, a man who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby saving him from injury or even death, commits no wrong. But there are many emanations of this principle, to be found scattered through the books. These are concerned not only with the preservation of the life or health of the assisted person, but also with the preservation of his property (sometimes an animal, sometimes an ordinary chattel) and even to certain conduct on his behalf in the administration of his affairs…
To fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.
On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

In an earlier response I mentioned Kuru v NSW and police entering a home to investigate domestic violence, in that case the Gleeson CJ, Gummow, Kirby And Hayne JJ said (at [40]): “The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle.”

Powers under s 60L and 61 of the State Emergency and Rescue Management Act 1989 (NSW) are given to senior police and may be exercised on their own initiative. They can certainly be exercised independently of any authority granted by the Minister under ss 37 and 37A; it’s hard to imagine how the powers would be ‘contrary’ to a Ministerial authority as the Minister is unlikely to declare that a certain area must not be evacuated. Power under ss 60L or 61 should not be exercised contrary to a direction under s 36(2) which says “… the Minister may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any fun’ so the Minister could direct the agency (NSW Police) not to exercise powers under s 60L or s 61 but it is unimaginable that the Minister would make such a order, I’m sure any Minister would want to ensure that the police continue to have the power to make ‘on the ground’ decisions to protect life.